U.S. v. Groce, 80-5860

• Decision Date: 16 August 1982
• Docket Number: No. 80-5860,80-5860
• Citation: 682 F.2d 1359
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: 11 Fed. R. Evid. Serv. 467 UNITED STATES of America, Plaintiff-Appellee, v. James Webster GROCE, Charles John Chisolm, Defendants-Appellants.

Page 1359

682 F.2d 1359

11 Fed. R. Evid. Serv. 467

UNITED STATES of America, Plaintiff-Appellee, v. James Webster GROCE, Charles John Chisolm, Defendants-Appellants.

No. 80-5860.

United States Court of Appeals Eleventh Circuit.

Aug. 16, 1982.

Anthony F. Gonzalez, Tampa, Fla., Nathan Eden, Key West, Fla., Bennie Lazzara, Jr., Tampa, Fla., for defendants-appellants.

Frank W. Trapp, Lynn Hamilton Cole, Asst. U. S. Attys., Tampa, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, HILL and FAY, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Defendants James Groce and Charles Chisolm were apprehended in a fishing boat approximately forty miles off the Florida coast with more than one hundred pounds of marijuana floating in the sea nearby. As a result, each was convicted by a jury on three counts of willfully conspiring to import marijuana, and possession with intent to distribute the controlled substance within the United States. They appeal their convictions by challenging the voir dire procedure of the district court, the admission of a nautical chart and related testimony into evidence, the sufficiency of the evidence sustaining their convictions, and the trial judge's failure to instruct the jury as to the voluntariness of defendant Chisolm's admission. Because all four challenges fail to support a finding of reversible error, we affirm.

FACTS

On July 9, 1980, at about 9:00 a. m. the Coast Guard Cutter Point Swift spotted a sixty-six foot wooden shrimping vessel approximately forty miles southwest of Florida. The vessel, Shrimp Chaser I, appeared to be drifting in the open waters of the Gulf of Mexico, but as the Point Swift approached, Shrimp Chaser I began to head due west away from Florida. Chief Harry F. Turpin, Captain of the Point Swift, pulled within a mile of the Shrimp Chaser I and turned on his hailing light and sirens. Maneuvering his boat closer, Turpin saw Charles Chisolm standing beside the pilot house of the shrimp boat. Turpin attempted to stop the boat by identifying himself as the United States Coast Guard, and as he was shouting he saw defendant James Groce run to the stern of the Shrimp Chaser I and toss six plastic garbage bags and two burlap bales overboard.

At this point, the Shrimp Chaser I abandoned its due west course. It shifted in the water erratically, and then headed toward the Point Swift on a collision course. To avoid being rammed, Turpin shouted on his P.A. hailer system that he would open fire if the approaching vessel did not halt. The Shrimp Chaser I immediately stopped its engines, and four Coast Guard crewmembers boarded the shrimper.

The boarding party, commanded by Petty Officer William Barts, handcuffed Chisolm and Groce and had them remain near the rear of the boat while the Coast Guard crewmembers searched for weapons and other people. Chisolm and Groce were alone, and Chisolm identified himself as the Captain.

In the meantime, Chief Turpin directed the Point Swift to where he had seen Groce dump the bags and bales overboard. Using a boat hook and a small rubber boat, two bags and one bale were recovered; five or six other plastic bags were broken by the hook with their contents falling into the sea. Turpin then returned to the Shrimp Chaser I and ordered that defendants be arrested, read their rights, and transported back to St. Petersburg, Florida.

Once in Florida, and after being read his rights a second time, Chisolm told DEA Special Agent Lowell Miller that the Shrimp Chaser I left Key West, Florida on July 3, 1980 to shrimp and was planning to return to Key West. At trial, however, Officer Barts, a shrimping expert, testified that the Shrimp Chaser I was not rigged for shrimping. Its nets were not positioned properly, and the vessel had no ice in the hold which would preserve the captured shrimp. In addition, a subsequent inspection of the boat by a customs agent revealed traces of marijuana in the rear of the boat and on the galley table. The customs agent also corroborated Officer Barts' opinion that if the boat had been shrimping, the hold would have been dirty and full of ice. Instead, the hold was unusually clean and contained marijuana seeds and leaves.

On the boat's galley table, officials found a partially unfolded navigation chart indicating the southwestern coast of Florida and a Spanish comic book printed in Colombia. Another chart, two spiral notepads, and one half of a Colombian peso also were found in the captain's quarters. Further testimony indicated that a customary method of identification for rendezvousing ships involved in drug smuggling is for each ship to carry one half of a Colombian peso. When they meet, if the two halves match, the identification is verified.

On this and other evidence Chisolm and Groce were convicted of conspiring to import marijuana into the United States in violation of 21 U.S.C. § 952 and 21 U.S.C. § 963, conspiring to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846, and possession with intent to distribute marijuana within the United States in violation of 21 U.S.C. § 841(a)(1). Each man was sentenced to three three-year terms to run concurrently, and both have filed a timely notice of appeal.

VOIR DIRE

Chisolm and Groce, both black men, initially maintain that their convictions should be reversed because of the trial judge's refusal to ask prospective jurors whether racial prejudice would influence the juror's verdict. Defense counsel requested that veniremen be asked the following question after the court's preliminary examination of the panel:

Does the fact that the Defendants in this case are black influence or prejudice your decision in this case either for or against the Defendant or for or against the government.

Despite defense counsel's position that the question could provide valuable insight, the trial judge refused the request because of his belief that no prospective juror would admit openly to racial prejudice. Because we find that the refusal to ask this question had the potential to interfere with defense counsel's exercise of peremptory challenges in the selection of jurors, we conclude that the trial judge acted improperly. However, under the standard recently enunciated in Rosales-Lopez v. United States, 451 U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981), we also must conclude that the error fails to constitute reversible error.

Before Rosales-Lopez, federal courts were uncertain as to whether the refusal to question prospective jurors about racial or ethnic prejudice constituted per se reversible error. The Supreme Court, however, rejected the per se approach and indicated that a case-by-case analysis of all circumstances is the proper inquiry. 451 U.S. at 192, 101 S.Ct. at 1636; see also Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976). In rejecting the per se reversible error rule, the Court nevertheless clearly acknowledges the critical role of voir dire in assuring a criminal defendant's sixth amendment right to an impartial jury and the right to exercise preemptory challenges under Rule 24(b) of the Federal Rules of Criminal Procedure. 451 U.S. at 188, 101 S.Ct. at 1634. Even though a trial judge is afforded broad discretion when conducting voir dire, see Fed.R.Crim.P. 24(a), special circumstances can give rise to constitutional requirements with respect to pursuing the possibility of racial or ethnic bias. 451 U.S. at 189, 101 S.Ct. at 1634; see Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). The Court, therefore, concludes:

In our judgment, it is usually best to allow the defendant to resolve this conflict by making the determination of whether or not he would prefer to have the inquiry into racial or ethnic prejudice pursued. Failure to honor his request, however, will be reversible error only where the circumstances of the case indicate that there is a reasonable possibility that racial or ethnic prejudice might have influenced the jury.

451 U.S. at 191, 101 S.Ct. at 1635.

After Rosales-Lopez, the better practice is to defer to the judgment of defense counsel when a voir dire question concerning racial or ethnic prejudice is requested unless, of course, there is "no rational possibility of racial prejudice." ¹ Although the trial judge correctly assesses human nature in his observation that most prospective jurors will not admit openly to personal prejudices, we agree with defendants that a valuable credibility judgment can be made from the way in which the question is answered. Such a judgment can prove instrumental in the decision to exercise peremptory challenges. Because the single question requested by defense counsel here would not have burdened the court nor unduly delayed proceedings, it should have been asked. Of course whether the trial court's refusal to ask the question constitutes reversible error is quite another issue.

In order to reverse, we must find a reasonable possibility that racial prejudice might have influenced the jury, and for guidance we turn to the analysis in Rosales-Lopez indicating that both internal and external circumstances should be examined for potential prejudice. By internal circumstances, we mean the nature of case and the parties. By external circumstances, we mean the potential for racial prejudice which further questioning may have disclosed. See 451 U.S. at 192-93, 101 S.Ct. at 1636.

Typically, reversal is proper when a defendant is accused of committing a violent crime against a member of different racial or ethnic group and the voir dire question is denied. 451 U.S. at 192, 101 S.Ct. at 1636; e.g., Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931). In Rosales-Lopez, however, a defendant of Mexican descent was accused of participating in a plan to smuggle illegal aliens into the United States. The crime was nonviolent, the...